Archives for: January 2013, 10
01/10/13
CA10: Once it was apparent defendant wasn't the man they wanted, the stop had to end
Officers lacked reasonable suspicion for a continued detention based on a belief that defendant was a different person who was wanted. The initial detention was reasonable, but, as soon as it was determined that defendant didn’t even look like the person wanted and another officer said he wasn’t the guy, the detention should have stopped. Instead, one of the officers insisted on him. “Agent Stanko, nevertheless, continued to detain De La Cruz and obtained his identification ‘just to be safe ... because I still wasn’t a hundred percent sure.’ ... The existence of reasonable suspicion, however, is measured from the perspective of an objectively reasonable officer, not from the subjective perspective of the particular officer on scene. See al-Kidd, 131 S. Ct. at 2082;...” Then, the flight of one of a group was not reasonable suspicion as to the others. United States v. De La Cruz, 2013 U.S. App. LEXIS 561 (10th Cir. January 9, 2013).
Defendant was found in a house after police were permitted entry by the person in control. The contents of a cell phone found on him was admitted into evidence. The entry and arrest were valid. The court does not decide[, but should have because the validity of the search of the cell phone is not discussed] the question of standing because the defendant disavowed the cell phone as his when he was arrested [n2]. United States v. Lindsey, 702 F.3d 1092 (8th Cir. 2013)* [Note: All in all, a really unsatisfactory opinion: too big an unanswered question. And I have an oral argument with one of the members of this panel on Jan. 18.]
MA: Shuffling feet can be a furtive movement
It was reasonable for the officer to tell the occupants of a stopped car at night to put their hands on the dashboard. As he approached, one was shuffling his feet, and that was a furtive movement justifying a frisk of the car. Commonwealth v. Obiora, 83 Mass. App. Ct. 55 (January 8, 2013).
The product of two trash pulls provided probable cause for the search warrant for defendant’s house. The warrant permissibly allowed a search of the cars found on the curtilage that belonged at the premises. United States v. Mitchell, 2013 U.S. App. LEXIS 452 (11th Cir. January 8, 2013).*
The officer approached a car sitting in a driveway with the engine running when he was responding to a burglary call. The occupants’ responses made no sense, and he ordered them out of the car. Instead, the car was put in gear and they tried to flee. They crashed the car and fled from it. Flight, at least at that point, gave reasonable suspicion [sounds like the officer certainly had it from the answers to questions]. United States v. Hopkins, 2013 U.S. Dist. LEXIS 3392 (S.D. W.Va. January 9, 2013).*
TN: Path in the grass was enough to permit police to approach front door in knock and talk
Defendant lived on a building on a relative’s property, and he argued it violated curtilage to even come to his door. A path in the grass from a dirt road was enough to show that the front door could be approached. State v. Robertson, 2013 Tenn. Crim. App. LEXIS 12 (January 7, 2013):
The Defendant's main contention with regards to whether the police officers executed a valid "knock and talk" is that there was no "pathway" from Grinnell Drive to the Defendant's building. Likewise, the Defendant argues that there was no "pathway" from the dirt road to the door of the building. However, the validity of an attempted "knock and talk" does not depend on the existence of a cobblestone pathway or a set of ornate stepping stones leading from the road directly to a defendant's front door. Nor is the procedure limited only to buildings that the police can reach by major public thoroughfares. Instead, the operative question is whether the defendant has an expectation of privacy in the area between the roadway and the defendant's front door. This principle applies regardless of whether the police are approaching a one-room shack off of a dirt road or a residence off of Old Hickory Boulevard.
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by John Wesley Hall
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2013-14 Term:
Fernandez v. California, granted May 20 (ScotusBlog)
2012-13 Term: 2010-11 Term: General (many free): Congressional Research Service: "If it was easy, everybody would be doing it. It isn't, and they don't." "A system of law that not only makes certain conduct criminal, but also lays
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or worse, its disregard of the charter of its own existence." Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment. "There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
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so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
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here, has not–to put it mildly–run smooth." "A search is a search, even if it happens to disclose nothing but the
bottom of a turntable." "For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected." “Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
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it is to oppress; the piranha can be as deadly as the shark.” "You can't always get what you want /
But if you try sometimes / You just might find / You get what you need." "In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
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Maryland v. King, granted Nov. 9, argued Feb. 26
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Missouri
v. McNeeley, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (Apr. 17) (ScotusBlog)
Bailey
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Florida
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19) (ScotusBlog)
Florida
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2011-12 Term:
Ryburn
v. Huff, 132 S.Ct. 987, 181 L.Ed.2d 966 (Jan. 23,
2012) (other
blog)
Florence
v. Board of Chosen Freeholders, 132 S.Ct. 1510, 182 L.Ed.2d 566 (April 2,
2012) (ScotusBlog)
United
States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (Jan. 23, 2012) (ScotusBlog)
Messerschmidt
v. Millender, 132 S.Ct. 1235, 182 L.Ed.2d 47 (Feb. 22, 2012) (ScotusBlog)
Kentucky
v. King, 131 S.Ct. 1849, 179 L.Ed.2d 865 (May 16, 2011) (ScotusBlog)
Camreta
v. Greene, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (May 26, 2011) (ScotusBlog)
Ashcroft
v. al-Kidd, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (May 31, 2011) (ScotusBlog)
Davis
v. United States, 131 S.Ct. 2419, 180 L.Ed.2d 285 (June 16, 2011) (ScotusBlog)
2009-10 Term:
Michigan
v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (Dec. 7, 2009) (per
curiam) (ScotusBlog)
City
of Ontario v. Quon, 130 S.Ct. 2619, 177 L.Ed.2d 216 (June 17, 2010) (ScotusBlog)
2008-09 Term:
Herring
v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (Jan. 13,
2009) (ScotusBlog)
Pearson
v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (Jan. 21, 2009)
(ScotusBlog)
Arizona
v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (Jan. 26, 2009)
(ScotusBlog)
Arizona
v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (April 21, 2009)
(ScotusBlog)
Safford
Unified School District #1 v. Redding, 557 U.S. 364, 129 S.Ct. 2633, 174
L.Ed.2d 354 (June 25, 2009) (ScotusBlog)
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—Me
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
—Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
—Katz
v. United States, 389 U.S. 347, 351 (1967)
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
—Mick Jagger & Keith Richards
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
—Pepé Le Pew
—Malcolm Forbes
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)
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